Disposed

Mohammed Safarulla K.K v. Nilambur Block Panchayat

Kerala HC18 Dec 2017WP(C)/9231/2017

Case brief

AI extract

What is this about?

Petitioner seeks release of balance final bill for completed road improvement work. Court finds no contractual provision for Chief Technical Examiner referral but directs inspection to assess rectification costs within two months before releasing the bill.

What did the court decide?

Directed Executive Engineer to inspect work, assess rectification costs, and release final bill after two months.

Mohammed Safarulla K.K Vs Nilambur Block Panchayat — Specific Performance | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939

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WP(C).No. 9231 of 2017 (D)

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PETITIONER:

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MOHAMMED SAFARULLA K.K.,

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GOVT.CONTRACTOR [REG.NO.68A], KANDAMKUDUKKA HOUSE, T.B.ROAD, WANDOOR P.O., MALAPPURAM DISTRICT, PIN: 679 328.

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BY ADVS.SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI

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RESPONDENT(S):

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1. NILAMBUR BLOCK PANCHAYAT CHANDAKUNNU P.O., NILAMBUR, MALAPPURAM DISTRICT PIN: 679 842, REPRESENTED BY ITS SECRETARY.

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2. ASSISTANT DEVELOPMENT COMMISSIONER (GENERAL) CIVIL STATION, UP-HILL, MALAPPURAM, PIN: 676 505.

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3. COMMISSIONER (RURAL DEVELOPMENT) COMMISSIONERATE OF RURAL DEVELOPMENT, 4TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN: 695003.

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4. STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN : 695 001.

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R1 BY ADV. SRI.P.C.SASIDHARAN

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R2 TO R4 BY SR GOVERNMENT PLEADER SRI. P. M. MANOJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2017, THE COURT ON 18-12-2017 DELIVERED THE FOLLOWING:

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sdr/-

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WP(C).No. 9231 of 2017 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1: TRUE COPY OF THE QUALITY CONTROL-FINAL SITE INSPECTION REPORT SUBMITTED TO THE FIRST RESPONDENT ON 03.05.2016.

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EXHIBIT-P2: TRUE COPY OF THE REPRESENTATION DATED 31.01.2017 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT.

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EXHIBIT -P3 TRUE COPY OF THE REPRESENTATION DATED 26.05.2016 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT

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EXHIBIT -P4 TRUE COPY OF THE REPORT DATED 07-04-2016 SUBMITTED BY THE GENERAL EXTENSION OFFICER, BLOCK PANCHAYAT, NILAMBUR TO THE FIRST RESPONDENT

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EXHIBIT -P5 TRUE COPY OF THE LETTER DATED 19.04.2016 ISSUED BY THE FIRST RESPONDENT TO THE ASSISTANT EXECUTIVE ENGINEER, BLOCK PANCHAYAT NILAMBUR

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EXHIBIT -P6 TRUE COPY OF THE AGREEMENT DATED 25.01.2014 EXECUTED BETWEEN THE FIRST RESPONDENT AND THE PETITIONER

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RESPONDENT(S)' EXHIBITS

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EXT.R1(A) TRUE COPY OF AUDITED OBJECTION DATED 23/02/2017

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EXT.R1(B) TRUE COPY OF THE LETTER ADDRESSED TO THE PETITIONER DATED 20/03/2017

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EXT.R1(C) TRUE COPY OF THE LETTER DATED 1/4/2017 OF THE SECRETARY REFERRING THE MATTER TO THE CHIEF TECHNICAL EXAMINER

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EXT.R(D) TRUE COPY OF THE LETTER DATED 20/03/2017

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EXT.R1(E) TRUE COPY OF THE COMPLAINT RECEIVED FROM THE BENEFICIARIES

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EXT.R2(A) COPY OF THE ORDER NO. RD2-1886/2011 DATED 01.12.2016

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EXT.R2(B) COPY OF THE LETTER NO. A 2179/13 OF FIRST RESPONDENT DATED 11.04.2017

/TRUE COPY/

PA TO JUDGE

sdr/-

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).No.9231 of 2017

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= = = = = = = = = = = = = = =

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Dated this the 18^th day of December, 2017

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JUDGMENT

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The prayers in this writ petition are as follows:-

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i. ”issue a Writ of Mandamus or such other Writ, Order or direction commanding the respondents to release the balance amount covered by the Final Bill submitted by the petitioner in respect of the improvement work of “Anakkallu-Muthukulam-Kalkettu Road” to the petitioner forthwith.

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ii. Issue a Writ of Mandamus or such other Writ, Order or direction commanding the respondents to pay interest @ 15% on the balance amount from the date of completion of the work till the date of payment.”

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Heard the learned counsel appearing for the petitioner, the learned Counsel appearing for the 1^st respondent Panchayat and the Government Pleader.

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The petitioner had been awarded the contract for the improvement work of “Anakkallu-Muthukulam-Kalkettu Road” in Pothukallu Grama Panchayat under NABARD RIDF Scheme. The work was completed and duly certified by the competent authority on 3.5.2016. Part bills had already been paid. Petitioner had submitted the final bill of Rs.8 lakhs on 25.5.2016. When no steps were taken to release the same and no reason was

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W.P.(C).No.9231/17

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stated by the Panchayat, the petitioner preferred Exhibit P2 representation on 31.3.2017. It was when no orders were passed, the writ petition is filed.

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A counter affidavit has been filed by the 1^st respondent contending that the final bill was not approved by the Panchayat, since completion certificate had not been issued due to complaints regarding execution of work. Copies of audit objection dated 23.02.2017 and a communication addressed to the petitioner on 20.03.2017 were produced along with the counter affidavit. It was further stated that by Exhibit R1(c) document dated 1.4.2017 the matter was referred to the Chief Technical Examiner, since the defects in the work had not been cured. A letter dated 20.03.2017 addressed to the Commissioner of Rural Development was also produced.

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A counter affidavit has been filed on behalf of the 2^nd respondent contending that the sanctioned amounts for the work has been released to the Block Panchayat and that the amount had been drawn from the Treasury on 11.4.2017. It is stated that the 1^st

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respondent has reported that the Block Panchayat had taken a resolution that the payment to be made after obtaining Technical Report from the Chief Technical Examiner, Finance (Inspection Wing), Thiruvananthapuram.

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The petitioner filed a reply affidavit contending that all communications relied upon by the respondents were issued after the filing of the writ petition and long after the period of one year from the date of completion of the work. Exhibit P3 request for final bill submitted by the petitioner, on which the Assistant Executive Engineer, LSGD Sub Division, Block Panchayat, Nilambur had endorsed that the work had been completed satisfactorily, was produced along the reply affidavit. A letter dated 7.4.2016 from the General Extension Officer to the Block Developmental Officer stating that there were no major complaints regarding the completion of work by the petitioner is also produced. The letter of the Secretary of the Block Panchayat to the Assistant Executive Engineer stating that on an enquiry conducted into the allegations raised against the work, it is found that the work had been satisfactorily completed, is also

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W.P.(C).No.9231/17

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produced. The petitioner had also produced Exhibit P6, copy of the agreement entered into between him and the 1^st respondent, to show that there is absolutely no provision in the agreement to send the matter for sanction to the Chief Technical Examiner.

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An additional counter affidavit has been filed by the 1^st respondent. Letter of the Secretary of the Block Panchayat dated 18.7.2016 calling for a report from the Assistant Executive Engineer and the report submitted in response thereto are produced. It is stated that the Secretary had again required the Assistant Executive Engineer by Exhibit R1(h) letter dated 2.2.2017 to clarify whether the defects in the construction of the road had been rectified by the petitioner. In reply, the Assistant Executive Engineer had informed the Panchayat on 18.02.2017 that though the petitioner had agreed to rectify the defects in the construction, no rectification had been done by him. In the above circumstances, it is contended by the 1^st respondent that further action on the final bill can be only after the defects found are rectified by the petitioner and after the examination by the Chief Technical Examiner.

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W.P.(C).No.9231/17

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The learned counsel for the petitioner contended that the agreement was entered into on 25^th of January 2014 and had been satisfactorily completed by the petitioner. It is stated that the completion of the work was duly certified by the Assistant Executive Engineer, LSGD. It is stated that the communications produced by the petitioner would show that there were only minor defects in the construction of the road, which could be easily rectified utlilising the amounts deposited as performance guarantee. It is contended that all documents which are now relied on by the 1^st respondent are once created after the writ petition is filed and the intention is clearly to defeat the claim of the petitioner. It is stated that going by Rule 14 of the Keraka Panchayat Raj Execution of Public Works Rules, 1997, the bills are to be paid after evaluation of the Technical Commitee of the Pachayat and nowhere in the Rules or in the contract entered into between the parties is there any provision to refer the matter to Chief Technical Examiner for verification before the amounts are paid. It is further contended that the period of performance guarantee, going by the contract is only year

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and there is absolutely no power in the Panchayat to demand rectification of defects which had occurred after the period of the performance guarantee from the petitioner.

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9.The learned counsel appearing for the 1^st respondent, would on the other hand contend that the writ petition which seeks payments on the terms of a contract between parties is not maintainable before this Court, in view of the clear disputes as to the admissibility of the amounts claimed in the final report. It is contended that it is not in dispute that there were defects in the carrying out of the work by the petitioner and therefore the final payment can be made only after the defects are rectified by the petitioner.

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10.I have considered the contentions advanced. It is true that this is not a matter regarding payment of any admitted amounts due to the petitioner in terms of the contract. The 1^st respondent-Panchayat contends that a completion certificate in proper form, after verification of the work, had not been issued by the Panchayat and therefore the petitioner would not

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be entitled to payment of his final bill. However, it is not disputed that the work had actually been completed by the petitioner. The contract provides for a performance guarantee of one year. An amount of Rs.2 lakhs is in deposit with the Panchayat as security for the performance guarantee. The Rules as well as the contract does not provide for any reference to the Chief Technical Examiner, Finance (Inspection Wing), Thiruvananthapram for payment of the contract amount. The petitioner evidently would be liable only for the rectification of the defects which occurred during the period of the performance guarantee. It appears from Exhibit P3 that the work had been completed at least by the month of May 2015 because Exhibit P3 contains an endorsement by the Assistant Executive Engineer that the work has been satisfactorily completed. In case there were any complaints with regard to any defects in the execution of the work, I am of the opinion that it was for the Block Panchayat to have considered the same and taken steps for rectification within a reasonable period from the date of the completion of the work. This writ petition having been filed before this Court seeking

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payment of the final bill on 16.3.2017, the respondents cannot rely on communications which have occurred thereafter to contend that the petitioner was not entitled to payment of the bill. I have also noticed that no materials whatever has been produced by respondents to show that the petitioner had been put on notice of any defect in the work carried out by the petitioner before the filing of the writ petition.

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11.In the above view of the matter, I am not impressed by the arguments raised by the 1^st respondent that the petitioner would be entitled to payments only after the Chief Technical Examiner takes a call in the matter. However, since the matter involves the expending of public funds, I am of the opinion that there should be some verification of the nature of the work done by the petitioner before the final bill is released to him.

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12.In the above view of the matter, there will be a direction to the Executive Engineer, LSGD, Malappuram to make an inspection as to the completion of the work done by the

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petitioner on the basis of the contract. The costs of the rectification of defects, if any which have arisen during the period of performance guarantee will also be assessed by the Executive Engineer. On such assessment, with notice to the petitioner and the Block Panchayat, the Executive Engineer shall assess the amounts to be released to the petitioner as well. Final bill due to the petitioner shall be released after such assessment. The entire process shall be completed within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment before the Executive Engineer, LSGD Malappuram for compliance.

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Writ petition is ordered accordingly.

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sd/- Anu Sivaraman, Judge

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Mohammed Safarulla K.K v. Nilambur Block Panchayat

Case brief

What is this about?

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Mohammed Safarulla K.K v. Nilambur Block Panchayat

Case brief

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